vs.
Respondents.
Case No. 18-4203GM
A duly-noticed final hearing was held in this matter on December 4 and 5, 2018, in Sarasota, Florida, before Francine M. Ffolkes, an Administrative Law Judge assigned by the Division of Administrative Hearings (DOAH).
Scott A. McLaren, Esquire Shane T. Costello, Esquire Hill Ward Henderson, P.A.
Alan W. Roddy, Esquire
Whether Sarasota County Comprehensive Plan Amendment Number 2017-B (the Plan Amendment) adopted by Ordinance Number 2018-006 (the Ordinance) is "in compliance," as that term is defined under section 163.3184(1)(b), Florida Statutes (2018).
On July 11, 2018, the Board of County Commissioners of Sarasota County (County) adopted the Ordinance. The Ordinance approved a privately initiated comprehensive plan amendment requested by the Respondent, Ibis Road Investors, LLC (Ibis Road). On August 8, 2018, the Petitioners, David Anderson, Keath Cuyler, Mitchell Goldberg, and Ronald Newmark, timely challenged the Ordinance under section 163.3184(5)(a), alleging that the Ordinance violated two provisions of section 163.3184.
The undersigned granted Ibis Road's Unopposed Motion to Intervene and granted it full party status as a respondent on August 17, 2018. On October 15, 2018, the Petitioners filed a Notice of Striking Issue "II," which limited the scope of their challenge to whether the Ordinance violated section 163.3177(2). The parties filed a joint pre-hearing stipulation on November 28,
2018. On December 4, 2018, the Petitioners filed Notice of Striking references to Policy VOS 2.5, which further limited the scope of their challenge.
At the hearing, Petitioner David Anderson, through counsel, voluntarily dismissed himself as a petitioner. Counsel for Ibis Road reserved the right to request attorneys' fees. The dismissal was granted and later memorialized by Order dated December 7, 2018. Joint Exhibits 1 through 14 were admitted into evidence. The Petitioners presented the expert testimony of Thomas Hawkins, who was accepted as an expert in planning and comprehensive planning, as well as the fact testimony of Keath Cuyler, Mitchell Goldberg, and Ronald Newmark. Petitioners' Exhibits 1 and 17 were admitted into evidence. The County presented the testimony of Vivian Roe. Ms. Roe was not formally tendered or accepted as an expert but is an experienced professional planner, who testified as to her opinions on planning issues without objection. Roe, Tr. pp. 182-83, 196-97. Ibis Road presented the testimony of David Anderson by videotape from his deposition; and Kelly Klepper, who was accepted as an expert in comprehensive planning. Ibis Road's Exhibits 2, 8, 17, 26, 27, 28, 68, 69, 70, and 71 were admitted into evidence.
The two-volume Transcript was filed with DOAH on December 19, 2018. On December 28, 2018, Ibis Road filed a
responded on January 2, 2019. The parties filed their proposed recommended orders January 2, 2019, which were considered in the preparation of this Recommended Order.
Ibis Road is a limited liability company that applied to the County for the comprehensive plan amendment adopted by the Ordinance, in conjunction with a Development of Critical Concern and a rezoning to Village Planned Development for a property it owns along Ibis Street in unincorporated Sarasota County. Ibis Road owns approximately 533 acres designated under the County's Village/Open Space (VOS) Resource Management Area (RMA) future land use overlay.
The County is a political subdivision of the state. The County adopted the Ordinance that approved the Plan Amendment on July 11, 2018.
Petitioner Keath Cuyler appeared and objected at the May 23, 2018, adoption hearing, and is a citizen of the County. Petitioner Cuyler resides at 8300 Ibis Street, Sarasota, Florida, located in unincorporated Sarasota County, near and proximate to the lands that are subject to the Plan Amendment. Petitioner Cuyler testified he owns approximately 37 acres and shares his
west and south property line with Ibis Road's property. He hunts on his property and likes its rural character. He is concerned
about traffic since the entrance to the Village Planned Development would be near his property, which now fronts on an infrequently used dirt road.
Petitioners Mitchell Goldberg and Ronald Newmark appeared and objected at the May 23, 2018, County adoption hearing and are citizens of Sarasota County. They co-own ten acres abutting Ibis Road's Village Planned Development. These Petitioners utilize their property for raising and riding horses. The entrance to Ibis Road's Village Planned Development is adjacent to their property and they are concerned that traffic and lights would disturb the horses and affect the rural nature of their property.
Dismissed Petitioner David Anderson testified that he opposed Ibis Road's Village Planned Development because it would impact the rural character of his community, which was the reason he had moved from Washington, D.C., to Florida.
The Petitioners and dismissed Petitioner Anderson deferred technical questions regarding the allegations of their challenge to their expert planner.
The Comprehensive Plan
The County's Comprehensive Plan (Comp Plan) adopted October 25, 2016, is the applicable version of the plan. The County's Comp Plan sets forth a listing of the material within it, entitled "The Components of the Plan." This section outlines
seven categories of "Primary Components" of the Comp Plan and the remainder of the document is classified as "support material," used to explain the Primary Components. The list of Primary Components includes the Goals, Objectives, and Policies of each chapter, and such other components as the Future Land Use Map Series and the Future Thoroughfare Plan. The County's expert witness testified that the Primary Components are used to evaluate consistency with the County's Comp Plan. She also testified that the support material is not used as criteria for evaluating development proposals.
The Future Land Use (FLU) Element of the County's Comp Plan is divided into two chapters. Chapter 7 of the County's Comp Plan contains the base or underlying FLU provisions and the FLU Map. Under Chapter 7 of the County's Comp Plan, most of the private land east of the County's Urban Service Area Boundary is designated as either Rural with a maximum density of one dwelling unit per five acres, or Semi-Rural with a maximum density of one dwelling unit per two acres.
Chapter 8 of the County's Comp Plan contains the alternative FLU provisions called Sarasota 2050. Sarasota 2050 is a system designed to encourage preservation of open space by allowing transfer of density into developments called Villages and Hamlets. Sarasota 2050 allows owners of Rural or Semi-Rural
FLU designated property to develop at higher densities than allowed under those FLU designations.
Sarasota 2050 maps the unincorporated area of the County as RMAs. Outside of the Urban Service Area, it shows RMAs for "Publicly Owned Lands and Lands Protected for Preservation," the connecting environmental corridors called "Greenways," and others. Map 8-3: RMA-3 designates three large VOS RMAs outside of the County's Urban Service Area Boundary for Village Land Use. The three areas are referred to as the North Village Area, Central Village Area, and South Village Area. Ibis Road's property lies within the South Village Area.
Within these Village Areas, there are multiple property owners. Sarasota 2050 offers the property owners significant density incentives, as well as opportunities for non-residential development if they develop their properties according to the Sarasota 2050 Village criteria.
Approval of a Village requires rezoning to the Village Plan Development zoning district and approval of a Village Master Development Plan. Each Village must have at least one Village Center. Villages have a minimum open space requirement of
50 percent and the remainder of the Village is called the Developed Area. The Developed Area is comprised of the Village Center and the Neighborhoods. Each Neighborhood has its own Neighborhood Center.
There may be several Villages within each Village Area.
The maximum size of a Village is 3,000 acres and the minimum size is 1,000 acres. The long-range plan of the County, as reflected in Sarasota 2050, is for all of the lands within each Village Area to be developed as Villages.
VOS Policy 1.3 provides that "Neighborhoods form the basic building block for development within the [VOS] RMA and are characterized by a mix of residential housing types that are distributed on a connected street system and the majority of housing is within a walking distance or ¼ mile radius of a Neighborhood Center." Neighborhood Centers may have "a combination of parks, schools, public type facilities such as churches and or community centers and may contain Neighborhood Oriented Commercial Uses that are no greater than 20,000 square feet of gross floor area and internally designed to specifically serve the needs of that Neighborhood."
Sarasota 2050 does not require that Neighborhood Centers contain commercial or office development or that houses in the Neighborhoods be within walking distance of commercial or office uses.
VOS Policy 1.2.A more specifically sets forth requirements for Villages.
Villages
Villages are a collection of Neighborhoods that have been designed so that a majority of the housing units are within a walking distance or ¼ mile radius of a Neighborhood Center. Villages shall be supported by internally designed, mixed-use Village Centers (designed specifically to serve the daily and weekly retail, office, civic, and government use and services needs of Village residents), and the Village shall be surrounded by large expanses of Open Space that are designed to protect the character of the rural landscape and provide separation between Villages and existing low density rural development. The minimum size of a Village is intended to be sufficient to support a public elementary school.
There is no requirement that residential development within the Village be within walking distance of commercial or office uses.
A table in VOS Policy 1.2.A sets forth the maximum and minimum sizes, densities, and percentages of land uses within a Village. Two asterisked footnotes allow deviations from the table:
*Projects may be less than 1,000 acres of Developed Area, if said project adheres to the requirements found in Policy VOS2.1(a)1, Developed Area Minimum Size.
**After an initial Village Master Development Plan has been approved for a Village Area (North, Central, South), the gross leasable square footage may be reduced or eliminated and the minimum land area percentages adjusted for each additional contiguous Village Master Development Plan within that Village Area where it is demonstrated that the non-residential needs of the Village will be served within that Village Area in a
manner consistent with the purposes of this chapter.
Every Village must have a Village Center that includes non-residential uses. In practice, not every Village Center was required to include a commercial use, as described in the second asterisked footnote to VOS Policy 1.2.A.
The County's witness testified that an initial Village in a Village Area was required to have a commercial component. However, an exception could be made for reduction or elimination of the commercial component for a new Village development in the same Village Area. Each new Village subsequent to the initial Village in a Village Area was evaluated to see if it could support its own commercial use, or whether it could be supported by the commercial component of other Villages in the Village Area. In addition, the exception should be "consistent with the purposes of [Chapter 8 of the County's Comp Plan]," and the subsequent Village was contiguous to the first Village.
The Village Areas have multiple property owners. VOS Policy 2.6 addresses the possibilities that the property owners may apply for Village approval all together or in separate Village Master Development Plans. When they apply for approval separately, the policy provides that Village Master Development Plans subsequent to the first one "may be considered as related to the initial Village," with no requirement for contiguity.
The initial Village Master Development Plan sets a framework for subsequent Villages in that particular Village Area. This includes the location of the school, the commercial center, and the primary road systems. The initial Village Center is required to have a commercial component. When subsequent Villages seek approval, the County evaluates how they would be connected, so that they complement each other.
LT Ranch Village was the initial Village approved in the South Village Area, and it sets the framework for the entire Village Area. It has a Village Center that includes
300,000 square feet of commercial retail development. A typical Publix shopping center with a Publix and a few other in-line restaurants and stores is approximately 60,000 to 80,000 square feet. Subsequent Villages, such as that proposed by Ibis Road, may be developed within the South Village Area. Where it is shown that the commercial needs of subsequent Villages within the South Village Area may be met by the LT Ranch Village Center, subsequent Villages need not include a commercial component.
The evidence established that Ibis Road provided a market study to the County to show that the commercial needs of its residents would be met by the LT Ranch Village Center. Thus, except for contiguity, Ibis Road's Village development is an illustration of the intent behind Sarasota 2050.
The Plan Amendment
The Plan Amendment would delete the word "contiguous" from the double-asterisked footnote exception in VOS Policy 1.2.A. The Plan Amendment would apply to all properties designated under the VOS RMA FLU overlay, i.e., in each of the three Village Areas. The change would allow the
County to approve a reduction or elimination of commercial/office uses within the Village Center of a Village subsequent to the initial Village, which is not contiguous with the initial Village. To obtain this exception, the property owner would still demonstrate that the initial Village already serves the non-residential needs of the new Village, and the reduction is otherwise consistent with the purposes of Chapter 8 of the County's Comp Plan.
County staff reviewed the Plan Amendment for consistency with the remainder of the Comp Plan, and specifically referenced the original adoption of the double-asterisked footnote in 2014. The staff report stated that "[t]he analysis for the 201[4] amendment recognized that smaller subsequent Villages may not be of sufficient size to support their own non- residential uses (Village Center), and that the initial, larger Village could provide sufficient non-residential services to support the entire Village Area." Thus, County staff concluded
that removal of the word "contiguous" from the double-asterisked footnote "would not impede on the intent of Policy VOS 1.2.A."
On February 15, 2018, the County's Planning Commission held a duly noticed public hearing and received public comments, reviewed the Plan Amendment, and by Resolution unanimously recommended approval.
On March 14, 2018, the Board of County Commissioners held a duly advertised transmittal stage public hearing pursuant to Section 163.3184(3) and (15) and by Resolution approved the Plan Amendment for transmittal to the Florida Department of Economic Opportunity (DEO).
DEO, the Southwest Florida Regional Planning Council, the Florida Department of Transportation, the Florida Department of Environmental Protection, the Florida Department of Agriculture and Consumer Services, and the Southwest Florida Water Management District reviewed the Plan Amendment and had no objection to or comments on the Plan Amendment. The DEO reviewed the Plan Amendment and determined there was "no provision that necessitates a challenge of the Ordinance adopting the amendment."
On May 23, 2018, the Board of County Commissioners held a duly-noticed public hearing and took public comment. The hearing was continued to the duly-noticed hearing on July 11,
2018, at which time the Plan Amendment was adopted by the Ordinance.
Petitioners' Objections
The Petitioners contend that the Plan Amendment is inconsistent with the purpose, intent, and core principles of Chapter 8 of the County's Comp Plan, including VOS Objective 1, VOS Policy 1.1, VOS Policies 1.2.A and 1.4 (the first, fourth, sixth, seventh, and eighth bullet points), and the definition of urban sprawl.
Central to the Petitioners' claims of inconsistency are the concepts of compactness, walkability, interconnectedness, and development with a mix of uses. The Petitioners' expert witness testified that removing the term "contiguous" caused inconsistency with the County's Comp Plan because it was inconsistent with the concepts of a compact development that is walkable, interconnected, and has a mix of uses.
"Walkability" to the commercial component of a Village Center was a contention of the Petitioners. The Petitioners' expert testified that the rule of thumb for "walkability" was how far one can walk in 15 minutes. He did agree with the County and Ibis Road's expert witnesses that there is no requirement for Neighborhoods to be within any fixed distance of a Village Center, no requirement of walkability from residential
development to the Village Center, and no requirement of walkability from a residence to any commercial/office use.
VOS Policy 1.3 requires that the majority of the housing within a Village be within walking distance or one- quarter mile of a Neighborhood Center, but does not require that the Village Center be within walking distance from the Neighborhoods themselves.
"Walkability" is used with respect to Neighborhoods and Neighborhood Centers, only the term "pedestrian friendly" is used with respect to Villages. "Pedestrian friendly" means that a range of pedestrian options are provided such as bicycle/pedestrian facilities, larger sidewalks, multimodal trails, accessibility, and lighting, the things that make it more comfortable for the pedestrian or the non-vehicle user.
The Petitioners' contend that a Village Center must be walkable from all areas of a Village. However, the allowable maximum size of 3,000 acres for a Village would not accommodate the walkability described by the Petitioners' expert.
There is no requirement in the County's Comp Plan for a specific location of a Village Center. The evidence established that in the South Village Area, the initially approved LT Ranch Village covers an area three or four times the distance from north to south as it does from east to west and its Village Center is located at the northernmost point. Based on the
allowable size of a Village and the lack of any requirement as to the location of the Village Center, "walkability" to the Village Center would not be possible. For example, the distance from the southernmost Neighborhood of LT Ranch Village to its Village Center is about three and one-half to four miles.
The Core Principles and the Introduction
The "Core Principles" of the Sarasota 2050 RMA system are set forth on the first page of Chapter 8 of the County's Comp Plan. This page generally describes the objectives of Sarasota 2050, but these are not Goals, Objectives, and Policies of the Comp Plan, and are not Primary Components of the Comp Plan. The County views the "Core Principles" as support material that it does not use to evaluate the consistency of development proposals with the Comp Plan. The Petitioners' expert conceded that the "Core Principles" provide context but should not be relied on as the sole basis for a finding of inconsistency.
Even if the Core Principles were a Primary Component of the Comp Plan, they do not contain a requirement regarding commercial/office uses in the Village Center or proximity of these uses to residences within the Village. Thus, the Plan Amendment is not inconsistent with the Core Principles.
The "Introduction" following the page of Core Principles is also viewed as support material rather than as a Primary Component of the County's Comp Plan. It generally
describes Sarasota 2050's purpose as an incentive system to "encourage[] a compact development form," but does not address commercial/office uses within Village Centers, or set forth any standards that could be deemed inconsistent with the Plan Amendment. Thus, the Plan Amendment is not inconsistent with this support material.
VOS Objective 1 and VOS Policy 1.1
VOS Objective 1 states the objective of preventing urban sprawl by guiding the development of lands outside the Urban Service Area into compact, mixed-use, pedestrian friendly Villages within a system of large areas of permanent open space.
The Petitioners argued that the Plan Amendment's deletion of a contiguity requirement would be inconsistent with VOS Objective 1. The Petitioners' expert testified that "compact, mixed-use, and pedestrian friendly" to a layman meant creating the ability to walk to a commercial use such as a restaurant, as exemplified in a downtown or mixed-use area.
However, VOS Objective 1 describes why Sarasota 2050 guides the development of land outside of the Urban Service Area into "compact, mixed-use, pedestrian friendly Villages" and is not a categorical prohibition against urban sprawl.
"Compact" is not defined in the County's Comp Plan.
The criteria for Sarasota 2050 Villages are that 50 percent of the Village that is not open space is Developed Area broken up
into Neighborhoods with a majority of the housing within walking distance of a Neighborhood Center, and at least one Village Center. The Petitioners did not prove that excepting a second Village from providing unnecessary commercial/office uses violated the compactness of a Village or the requirement for mix uses.
"Pedestrian friendly" is also not defined, but is more a matter of pedestrian safety than proximity to particular uses. The Plan Amendment does not prevent the Villages from being compact, mixed-use, or pedestrian-friendly.
VOS Policy 1.1 also requires a connected system of roads encouraging alternative means of transportation such as pedestrians, bicycles, and transit. Removal of the requirement for one Village to be contiguous with another does not affect achievement of this policy.
VOS Policy 1.2.A
VOS Policy 1.2.A provides the general requirements for Village development, including an internal, mixed-use Village Center. As found above, the double-asterisked footnote was added in 2014 to reduce or eliminate the requirement of a commercial use within the Village Center where it is demonstrated that there is already an existing Village Center within that Village Area with a commercial component, and the commercial needs of the new Village will be served by that existing Village Center "in a
manner consistent with the purposes of [Chapter 8 of the County's Comp Plan]."
The Petitioners' expert admitted that the double- asterisked footnote was an exception that allowed for greater flexibility when approving Village developments without undermining the other policies of the Comp Plan. The Petitioners' expert opined that removal of the word "contiguous" from the double-asterisked footnote would be inconsistent with VOS Policy 1.2.A because it would result in development of a new Village without any non-residential land uses. However, the double-asterisked footnote's exception would have that same result whether or not the word "contiguous" was present.
The County's expert witness testified that the Plan Amendment did not result in an inconsistency with VOS Policy 1.2.A, because the intent of the policy was that each
Village Area, not each Village, meet the daily and weekly non- residential, including commercial, needs of the residents of the Village Area. Thus, deleting the word "contiguous" would not have a negative effect on this intent.
VOS Policy 1.4
The Petitioners relied on bullet points within VOS Policy 1.4. The Petitioners contended that the first bullet point of VOS Policy 1.4, which requires a mix of uses within a Village, expressly mandated commercial development within every
Village. However, the Policy should be read in conjunction with the double-asterisked footnote of VOS Policy 1.2.A. The double- asterisked footnote provides for reduction or elimination of commercial uses in a Village Center as described in the above findings. The County's and Ibis Road's experts testified that the Plan Amendment was not inconsistent with the first bullet point of VOS Policy 1.4 because it only requires a mix of uses within each Village, which can be achieved without having a commercial use.
The fourth bullet point of VOS Policy 1.4 expressly provides that the Village Center must be conveniently served by regional bus service. This language does not contemplate that the Village Center must be a walkable distance from the residences. The language does not require that every Village Center have commercial uses.
The Petitioners also relied on the sixth bullet point of VOS Policy 1.4 referencing "compact design" of a Village linking one Neighborhood to another. This language is specific to the connections between Neighborhoods within a Village, not the relationship of multiple Villages to one another. The compact design within a Village is not related to contiguity between Villages.
The Petitioners relied on the seventh bullet point of VOS Policy 1.4 to support their argument of internal
inconsistency. The language requires Villages to include interconnected streets to balance the needs of all users. This language is relevant to development within Villages, not the relationship between one Village and another.
Finally, the Petitioners relied on the eighth bullet point of VOS Policy 1.4 to support their argument of internal inconsistency. This provision calls for a Village to have pedestrian-friendly components such as sidewalks, lighting, and signage. This language addresses the development of the internal components of a particular Village. The language is not relevant to the relationship between Villages.
Attorneys' Fees
Ibis Road did not prove by a preponderance of the evidence that the Petitioners and dismissed Petitioner Anderson participated in this proceeding for an improper purpose.
Ibis Road did not prove by a preponderance of the evidence that the Petitioners, dismissed Petitioner Anderson, or the Petitioners' attorney should be sanctioned for filing a pleading, motion, or paper for an improper or frivolous purpose.
There was an arguable basis for the Petitioners' claims of inconsistency presented through the expert testimony of Thomas Hawkins. Mr. Hawkins is a certified planner and was accepted as an expert in comprehensive land use planning.
Summary
The Petitioners did not prove beyond fair debate that the Plan Amendment causes Chapter 8, or any other portion, of the County's Comp Plan to be internally inconsistent.
CONCLUSIONS OF LAW
Standing and Scope of Review
To have standing to challenge a comprehensive plan amendment, a person must be an "affected person" as defined in section 163.3184(1)(a). The Petitioners are affected persons and have standing to challenge the Ordinance.
An affected person challenging a plan amendment must show that the amendment is not "in compliance" as defined in section 163.3184(1)(b). "In compliance" means consistent with the requirements of sections 163.3177, 163.3178, 163.3180, 163.3191, 163.3245, and 163.3248.
Burden and Standard of Proof
As the parties challenging the Ordinance, the Petitioners have the burden of proof.
The County's determination that the Ordinance is "in compliance" is presumed to be correct and must be sustained if the County's determination of compliance is fairly debatable. See § 163.3184(5)(c)1., Fla. Stat.
The term "fairly debatable" is not defined in chapter 163. In Martin County v. Yusem, 690 So. 2d 1288, 1295
(Fla. 1997), the Florida Supreme Court explained "[t]he fairly debatable standard is a highly deferential standard requiring approval of a planning action if a reasonable person could differ as to its propriety." The court further explained, "[a]n ordinance may be said to be fairly debatable when for any reason it is open to dispute or controversy on grounds that make sense or point to a logical deduction that in no way involves its constitutional validity." Id. Put another way, where there is
"evidence in support of both sides of a comprehensive plan amendment, it is difficult to determine that the County's decision was anything but 'fairly debatable.'" Martin Cnty. v. Section 28 P'ship, Ltd., 772 So. 2d 616 (Fla. 4th DCA 2000).
Moreover, "a compliance determination is not a determination of whether a comprehensive plan amendment is the best approach available to the local government for achieving its purpose." Martin Cnty. Land Co. v. Martin Cnty., Case
No. 15-0300GM, RO at 149 (Fla. DOAH Sept. 1, 2015; Fla. DEO Dec. 30, 2015).
The standard of proof for findings of fact is preponderance of the evidence. See § 120.57(1)(j), Fla. Stat.
Section 163.3177(2) requires the elements of a comprehensive plan to be internally consistent. A plan amendment creates an internal inconsistency when it conflicts with an existing provision of the plan. "If the objectives do not
conflict, they are coordinated, related, and consistent." Melzer
et al. v. Martin Cnty. et al., Case Nos. 02-1014GM and 02-1015GM, RO at 194 (Fla. DOAH July 1, 2003; Fla. DCA Oct. 24, 2003). "If
an amendment expressly creates an exception or waiver to a general rule set forth in the plan, it does not create an internal inconsistency." Id. at 195.
The Petitioners did not prove beyond fair debate that the Plan Amendment was inconsistent with the goals, objectives, or policies of Sarasota 2050.
Attorneys' Fees
Ibis Road did not prove by a preponderance of the evidence that the Petitioners and the dismissed Petitioner Anderson participated in this proceeding for an improper purpose as defined under section 120.595(1), Florida Statutes.
There was an arguable basis for the Petitioners' claims of inconsistency that was presented through the expert testimony of Mr. Hawkins. Mr. Hawkins is a certified planner and was accepted as an expert in comprehensive land use planning.
Ibis Road did not prove by a preponderance of the evidence that the Petitioners, the dismissed Petitioner Anderson, or the Petitioners' attorney filed a pleading, motion, or paper in this proceeding for an improper purpose as defined under sections 120.569(2)(e) and 163.3184(9). See Friends of Nassau
Cnty. v. Nassau Cnty., 792 So. 2d 42, 57 (Fla. 1st DCA 2000)("The
reasonableness of a lawyer's actions in filing an administrative petition should not be determined by the outcome of the proceeding . . . the determination must be based on an objective evaluation of the circumstances existing at the time the petition was filed."); see also Mercedes Lighting & Elec. Supply v. State,
560 So. 2d 272 (Fla. 1st DCA 1990).
Summary
The County's determination that the Ordinance is in compliance is fairly debatable.
The Petitioners did not prove beyond fair debate that the Ordinance is not in compliance.
RECOMMENDED that the Department of Economic Opportunity issue a final order finding the Plan Amendment adopted by the Ordinance in compliance.
DONE AND ENTERED this 20th day of February, 2019, in Tallahassee, Leon County, Florida.
FRANCINE M. FFOLKES
Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 2019.
Alan W. Roddy, Esquire
Scott A. McLaren, Esquire Shane T. Costello, Esquire Hill Ward Henderson, P.A.
William Chorba, General Counsel Department of Economic Opportunity Caldwell Building, MSC 110
Ken Lawson, Executive Director Department of Economic Opportunity Caldwell Building
Stephanie Webster, Agency Clerk Department of Economic Opportunity Caldwell Building
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
